Skillern Firm

(713) 229-8855

Skillern Firm
Home $ Does Adultery Affect Divorce Proceedings

Does Adultery Affect Divorce Proceedings

Adultery is a leading cause of divorce across the United States. In Texas, adultery is grounds for a fault-based divorce. This means that not only can cheating be cited as the reason for the breakdown of your marriage, but it can also affect many elements of the divorce process and subsequent outcomes.

If adultery is proven to the court during a divorce, a Judge could favor the division of marital property towards the non-cheating spouse. 

Both proving and fighting divorce allegations in Texas divorce court can be challenging. The impacts of an at-fault divorce on the final settlement can be substantial. As such, proving or objecting to allegations of adultery should not be taken lightly.

At Skillern Firm, our attorneys understand that there is no one size fits all approach to high-standard legal representation. Our divorce lawyers will work alongside you to develop a tailored approach and effective strategy to address the specific circumstances of your divorce and increase the likelihood of a successful outcome.

Whether you are looking to file a divorce based upon your spouse’s adultery, or have been accused of cheating, the Skillern Firm team is best placed to secure results for you and your family. Contact an experienced attorney today by calling 936-213-8479.

What Is A Fault-Based Divorce?

A fault-based, or at-fault, divorce relies upon the concept that one spouse’s wrongdoing or misconduct is the reason a marriage broke down. Texas family law acknowledges four fault grounds for divorce: cruelty, adultery, abandonment, and felony conviction. If filing for a fault-based divorce, the alleging spouse must prove the other’s spouse’s marital misconduct to the court. If successful, the at-fault spouse’s behavior can be taken into consideration when determining the final divorce settlement.

Alternatively, a no-fault divorce in Texas allows couples to file for divorce without claiming that either spouse’s behavior is the cause of the relationship breakdown. A couple can cite three potential grounds for a no-fault divorce in Texas: Insupportability, sometimes referred to as irreconcilable differences, living apart, or confinement to a mental hospital.

Fault Grounds For Divorce


Texas law simply defines cruelty fault grounds as cruel treatment of a spouse of such a nature that it renders living together insupportable. Cruelty can be either physical or mental and can be open to interpretation. A Judge can use their discretion to determine what qualifies as cruel treatment on a case-by-case basis.

In most cases, the cruelty displayed by a spouse must be wilful and persistent for a divorce on these grounds. However, in some situations, one incident or act of cruelty may be so severe that it alone is justification to support a divorce on the grounds of cruelty.


Two criteria must be met to prove abandonment in a Texas divorce. A spouse must voluntarily leave the other spouse and intend to abandon them. Intent to abandon is essential in these circumstances. For example, a spouse who left on a military deployment went away for work purposes instead of to abandon their spouse. As such, this would not qualify as abandonment grounds.

For a divorce based upon abandonment, the period that your spouse left must be continuous for at least one year. If your spouse returns to the marital home for any period of time during the year, you may not be eligible to cite abandonment grounds in your divorce.


The Texas Family Code defines adultery as a married person engaging in voluntary sexual intercourse with another person who is not their spouse. If adultery is proven during divorce proceedings, it has the potential to affect the final divorce settlement. This can include property division, spousal support, and child custody. However, it is not certain that adultery will affect these elements, and every divorce case is unique.

Texas law does not recognize legal separation. Similarly, a couple is still considered legally married until the final divorce decree has been signed by a Judge. A couple is still married in the eyes of the law even when the initial divorce petition is filed with the court. As such, a spouse can commit adultery if they have an extramarital relationship at any point before their divorce is final.

Felony Conviction

If your spouse is convicted of a felony, this could serve as fault grounds for a divorce in Texas. To qualify, a spouse must have been convicted of a felony during the marriage and be incarcerated in a federal penitentiary or department of criminal justice for at least one year. If a spouse is pardoned, felony conviction grounds would not be applicable.

How Does Adultery Affect A Divorce?

Property Division

The concept of community property guides the division of property between spouses in a divorce in Texas. Community property law states that any assets acquired by either spouse within the duration of the marriage are community property and subject to division between spouses in a divorce, unless the property was acquired via gift or inheritance. This can include assets such as real estate, marital funds, stocks, vehicles, financial resources, and businesses. Community property can also include debts such as credit card bills and loans.

In Texas, community property must be divided in a ‘just and right’ manner. The concept of just and right is subjective and somewhat open to interpretation. This rarely means an equal 50/50 split.

The subjective nature of ‘just and right’ means that the court can use discretion and take into consideration either spouse’s wrongdoing when awarding property and assets. In a fault-based divorce, including in cases of adultery, when fault is proven, this can sway a Judge’s decision in favor of the non-cheating spouse.

The court can’t use property division to punish the spouse that committed adultery. However, as the infidelity led to the breakdown of the marriage, a Judge can consider the benefits that the other spouse would have maintained if the marriage had not broken down. As such, the non-cheating spouse could be awarded a larger share of property and assets to account for this.

Spousal Support

The Texas Family Code outlines complex criteria that a spouse requesting spousal support must meet to be eligible for support payments. These criteria are predominantly based upon an individual’s ability to earn enough to meet their minimum reasonable needs. As such, there is no guarantee that spousal support will be awarded in a Texas divorce. However, if awarded, some elements of adultery could affect the payments that a Judge could allocate.

For example, a Judge will consider either spouse’s excessive spending or destruction of community property during the marriage. If a cheating spouse spends substantial marital funds on an extramarital relationship, this could influence spousal support. Overall, adultery can affect a court’s decision on the amount and duration of spousal support awarded, but each situation is unique. To find out how adultery could impact spousal support in relation to your case, speak to a divorce attorney to review your specific circumstances.

Child Custody

A common question for couples going through a fault-based divorce is will adultery affect child custody? This can depend on the specifics of the circumstances involved, but it is possible that a spouse’s infidelity may impact a Judge’s child custody decisions.

The courts will always aim to award child custody based on the child’s best interests. Most Judges will act upon the belief that it is important for a child to have a relationship with both of their parents and award custody accordingly. However, in most at-fault divorces, a spouse’s behavior can be taken into consideration in custody proceedings. Adultery specifically will not always influence proceedings, and many factors determine how adultery affects child custody. However, a parent’s behavior or new relationship could affect how custody is awarded.

If a parent shows a persistent behavior of prioritizing relationships with other people over their child’s best interests and spending time with them, this could go against them when deciding custody. Similarly, a Judge may favor awarding custody to the non-cheating spouse if the other parent’s infidelity could have a negative impact on a child. This may include behavior such as inappropriately introducing a child to new partners, a new partner that poses a risk to the child, or if the infidelity occurred either in front of the child or with their knowledge, resulting in potential emotional trauma.

In addition, children over the age of 12 are permitted to speak to a Judge in person to discuss their preference for custody arrangements after the divorce. Although a child’s preference will not be the sole influence in custody proceedings, a Judge may still take their preference and opinions into consideration. If a child is aware of a parent’s adultery during the marriage, this may impact how they feel about each parent and their subsequent preference for custody arrangements.

Proving Adultery In A Divorce Case

Conjecture and suspicion are insufficient for adultery to be considered in divorce proceedings. It must be proven to the court that a spouse committed adultery with substantial evidence and testimony. An alleging spouse does not have to provide direct proof of adultery, but circumstantial evidence is beneficial to support a claim of marital misconduct. Common evidence used to prove adultery in a divorce includes emails and text messages, photographs, bank statements, and call logs.

The alleging spouse must prove that the other spouse was very likely to have engaged in adultery and that this behavior led to the breakdown of the marriage. If you are looking to allege adultery, an experienced divorce attorney can advise you on the level of proof required in Texas court and help you build your case.

Do I Need An Attorney For A Divorce Involving Adultery?

Whether you are accusing your ex of adultery during your divorce or you are being accused of an extramarital affair, likely a divorce lawyer will be crucial to your case. Both proving adultery and disputing claims of adultery against you can be challenging, and your ex will more than likely secure legal representation to aggressively fight their case against you.

If proven during a divorce, an extramarital affair can affect many aspects of life for spouses and their families and have long-lasting implications. To build the strongest case possible and fight for your rights in the courtroom, seek advice from a skilled divorce attorney as soon as possible in your divorce.

Once you have legal counsel, your attorney can start work to collect evidence and testimony to support your argument and develop a strategy to give you the best chance of a successful outcome.

Skillern Firm Adultery Divorce Lawyers

Skillern Firm divorce attorneys have extensive experience and knowledge of divorces involving adultery in Texas. We will use our skill and breadth of knowledge to fight for our client’s rights and ensure they secure the best possible result from their divorce. For reputable high standard legal representation, contact Skillern Firm today at 936-213-8479 to book an appointment.